Issue Brief Author Says Supreme Court Should ‘Energize Federalism,’ by Finding that the States Must Recognize Other States’ Same-Sex Marriages

Washington, D.C.—The path to marriage equality might be less complicated if the U.S. Supreme Court were to require the “states to recognize same-sex marriages created in other states, without exception,” a constitutional law expert argues in a new ACS Issue Brief.

In “The Converging Logic of Federalism and Equality in Same-Sex Marriage Recognition,” Mae Kuykendall, a professor of law at Michigan State University College of Law, details how the Supreme Court could help advance marriage equality by requiring “that states incorporate a robust principle of equal protection directly into the recognition rules written by the states. The first step in a new robustness for equality principles in recognition rules would be to require every state to treat all same-sex marriages domiciled in the state as marriages under the state’s marriage law. A focus on equality principles isolates same-sex marriage conceptually from marriages that states reasonably choose not to recognize, such as marriages involving some form of bad conduct by the parties, or marriages that lack any rooting anywhere in American law.”

Combining a strong equality component with federalism does not mean the high court must “decide whether same-sex marriage is a fundamental right,” the professor maintains. Nor would the justices need to decide “whether equality principles require an end to state rules barring same-sex couples from receiving a state marriage license; the Court can foreclose the need to respond to any demand that it articulate a limiting principle for other hypothesized variants on traditional marriage.”

Instead the Supreme Court, Kuykendall continues, can “recognize that marriage exists in the American states and apply strong equality principles within the context of comity among the states.”

As the high court’s 2012 – 2013 term approaches, there is speculation over how or whether the question of same-sex marriage will reach the justices. The high court, for example, might consider a case regarding the so-called Defense of Marriage Act or the litigation surrounding California’s Proposition 8, a ballot initiative which barred marriage equality after the state’s high court ruled in favor of equality.

“A society,” she writes in conclusion, “committed to the equality of persons under the law may not treat marriages with disdain. To ensure a fairer treatment of marriage, equality is needed as a strong partner to federalism, not merely an occasional helper.”

The ACS Issue Brief is available here. Please contact the ACS Communications Department to arrange interviews with Professor Kuykendall.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.